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Originally published January 12, 2013 at 8:16 PM | Page modified January 12, 2013 at 9:48 PM

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Mercer Island landlord tries to ban pot in apartment building

A Mercer Island apartment landlord kick-started a debate when it sent notices recently to tenants in 171 apartments saying that pot, in all forms, would be strictly prohibited and grounds for eviction.

Seattle Times staff reporter

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A Mercer Island landlord is trying to ban marijuana in a tony apartment building, raising questions about what's allowed under Washington's medical-marijuana law and new legal-pot law.

Abode Management kick-started a debate when it sent notices recently to tenants in 171 apartments saying that pot, in all forms, would be strictly prohibited and grounds for eviction.

What's more, the company required tenants to report on others suspected of using pot. And it wanted all tenants to sign an amendment to their leases saying they would comply with the new edict.

At least one tenant, medical-marijuana patient Alex Aversano — who uses a liquid form of pot for pain relief — balked. That's led the company to backpedal. On Thursday, Abode said its intention is to ban smoking of any substances. The company acknowledged it can't force tenants to sign the ban mid-lease, only when they're renewing or signing a new lease. A company spokeswoman left the matter of liquid or edible marijuana cloudy.

"This is a cutting-edge issue that plays into several areas of law: medical marijuana, Initiative 502, landlord-tenant law, and privacy matters," said Hilary Bricken, an attorney who has offered to represent Aversano pro bono.

At the center of the legal thicket is the conflict between federal law, which considers all forms of marijuana illegal, and more liberal state laws.

This much is clear: Landlords can ban smoking — including pot smoking — in their properties, despite I-502.

State law allows that. And there is no exception for medical-marijuana patients.

An Iraq war veteran, Aversano, 31, came home from his college classes last week to find a notice on his door saying he had to sign a lease amendment which, among other things, required him to tattle on neighbors. "To spend $1,600 on rent and be told we can't use something that we're told is legal is un-Washingtonian," Aversano said.

Aversano uses a marijuana tincture for chronic pain and to ease his PTSD symptoms. He and his girlfriend, Alyssa Berg, 27, say they've never smelled any kind of smoke in their building and never heard a smoke or fire alarm.

"I don't know what would prompt the notice other than pre-emptive action" against the new law, which allows social users over 21 to possess up to an ounce of pot, Berg said.

The state's indoor-smoking ban is meant to protect nonsmokers. To carve out a smoking exception for medical marijuana, advocates would need to show scientifically that secondhand pot smoke is substantively different from tobacco smoke, said Alison Holcomb, drug-policy director for the ACLU of Washington. "I'm not aware of that case being made," Holcomb said.

But there is another option for patients, she said. They can vaporize their pot, using devices that heat marijuana and release key chemicals without igniting dried plant matter. Instead of creating smoke, users inhale vapors.

Holcomb says vaporizing is as effective as smoking and healthier, not to mention legal. "The law is silent on vaporization," she said. "The clean-indoor-air act prohibits acts of smoking, and vaporization is not smoking."

Doug Hiatt, a criminal-defense attorney and medical-marijuana advocate, said he doesn't see how landlords could ban edible or liquid forms of marijuana. He called the Abode Management strategy "an incredibly misguided effort; there's no way they can properly police it."

"What would they do," Hiatt said, "search everybody's chocolate-chip cookies? It's reefer madness all over."

Spokeswoman Talvinder Sahota said Abode Management would consult an attorney if tenants wanted to recreationally use nonsmokable forms of pot.

Landlords can try to rely on federal law, several attorneys said, which maintains marijuana is an illegal substance. And, indeed, the state's largest association of landlords is telling rental-property owners they can use the federal law to ban pot.

While the Rental Housing Association of Washington hasn't taken an official position on marijuana laws, it sees nothing in I-502 that changes the way properties can be managed, said spokesman Sean Martin.

What's different, Martin said, is that debate is likely to heat up around the state. "It's not going to become a smaller issue," he said.

Whether landlords can evict tenants for possessing marijuana is an unresolved issue, Holcomb said. "It's not been tested in the courts. That question is still open."

A King County Superior Court judge ruled in a 2005 case that patients could not be evicted for properly growing medical marijuana in their apartment. But that decision has never been appealed.

Landlords can't be charged with a crime, Holcomb said, if their tenants have pot. Landlords would have to be growing it or supplying it to be criminally liable.

The feds could bring civil asset-forfeiture charges against landlords, Holcomb added, but that requires that landlords knew there was illegal activity on their properties. And then, there's the practical question of whether the federal government would dedicate its energy to tracking down such cases, particularly involving medical patients. "I think the odds of that are slim," Holcomb said.

Hiatt said he could see something quite different happening: some landlords allowing, even touting, pot-friendly apartment buildings. "This is America. If there's a way to make money, I think they'll do it."

Aversano and Berg aren't sure they want to renew their lease, which expires next month. They're waiting to see Abode's revised lease amendment. They would likely have to sign it within a couple of weeks to stay in their apartment.

The company issued a statement saying it respects Aversano's military service and was not aware of his need to use a liquid form of marijuana. "Creating a smoke-free environment is a work in progress," the statement said.

Aversano says he understands the company's desire to avoid costs and risks associated with smoking in its properties — and its possible confusion about the tangle of laws. But he's particularly galled by the provision requiring tenants to narc, by giving the landlord "a written statement of any incident where they have knowledge of said policy being violated."

"If anything," he said, "I hope to continue to give back to Washington voters and help clarify what this new legislation is going to mean for our state."

Bob Young: 206-464-2174 or byoung@seattletimes.com

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